Articles Posted in wrongful death

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Wrongful death lawsuits are distinct in a number of ways under Florida law. Unlike personal injury lawsuits, which are filed by the victim, wrongful death lawsuits must be filed by the estate of the deceased, and must seek recoverable damages on the part of one of more living parties. surgery-300x225

The Sarasota Herald-Tribune recently looked at a gap in Florida wrongful death law, which may leave young, single adults over the age of 25 without a party that can bring an actionable claim for damages in the wake of a negligent death.

Our wrongful death attorneys in Fort Myers and Cape Coral know many of the same law firms that advertise representation of personal injury victims, also handle wrongful death claims. However, victims need to understand that these two claims are vastly different, both in terms of proving damages and in how they are pursued in a court of law.

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In Florida wrongful death lawsuits, there are certain individuals who have the right to pursue such action, either as the personal administrator of the deceased or as dependent survivors of the deceased. These are generally, in order, spouses, minor children, dependent parents and dependent siblings. For anyone who owes child support, however, it should be noted that F.S. 409.25656 allows for garnishment of any personal injury or wrongful death damage award for certain outstanding obligations – including child support. wrongful death attorney

Laws and application vary from state-to-state, but a recent case out of Tennessee challenged similar provisions in that state’s laws.

Ultimately, the state’s highest court awarded a $100,000 settlement in a wrongful death car accident lawsuit to decedent’s husband, who had abandoned both his wife and child shortly after the child was born and who owed a total of $72,000 in child support to his four other unrelated children. That $100,000 settlement is to be garnished for the $72,000 in support, but plaintiff will still receive payment on the rest. Though a state law in Tennessee precludes spouses who abandon (by legal standards) their partners from collecting wrongful death damages for a partner’s death, that law was not in place at the time decedent in this case died.  Continue reading →

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Florida wrongful death lawsuits can be tricky matters when it comes to who has the right to sue. One can pursue a claim as a representative of decedent’s estate or they can pursue action as a survivor of decedent. Claims by survivors may result in higher damage awards, depending on the circumstances, because there are different types of damages one can assert. Those with a right to claim damages as a survivor generally include (in descending order) the decedent’s:

  • Spouse;
  • Children (particularly those under 25);
  • Parents;
  • Siblings or other blood/ adoptive relatives who were at least partially dependent on decedent for support or services.wrongful death attorney Fort Myers

Still, it is incumbent on those who have the right to pursue such a claim to do so in a timely manner. For example, a spouse may have statutory priority over a decedent’s parents in a wrongful death claim, but unless the spouse actually files the claim within the wrongful death statute of limitations (2 years in Florida), they may not be able to successfully challenge a prior claim, settlement or verdict.

Such was the case in a matter recently before the Tennessee Supreme Court. According to court records, the mother of an unmarried man who died in handcuffs while in the custody of a retail store was able to secure a wrongful death lawsuit settlement in 2010, claiming to be the sole heir of the decedent. However, 20 months after the case was dismissed in lieu of that settlement, a woman who reportedly gave birth to decedent’s child filed a motion to set that order aside and substitute her (as her child’s representative) as the real party in interest, allowing the claim to relate back to the original filing. Continue reading →

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In most Florida wrongful death lawsuits, it’s often a simple matter to link defendant (the person alleged to be legally at-fault) with the conduct that resulted in death. For example: A drunk driver swerves off the road and slams into a tree, killing a passenger. The defendant’s negligent conduct caused the passenger’s death.wrongful death

It can get complicated, though, when we’re dealing with liability for a loved one’s suicide. This is where that causal link (referred to in court as “causation”) becomes difficult to prove. A person who commits suicide is the direct cause of his or her own death. But the question becomes: Was defendant’s action or inaction a substantial factor in decedent’s suicide? Courts will also ask whether decedent’s actions were reasonably foreseeable. There are no hard-and-fast rules for when a defendant may be legally liable for someone else’s suicide, but we have noticed an increase in such cases.

Recently in Wakulla County, the parents of a 15-year-old who tragically committed suicide have filed a wrongful death lawsuit against the school and one of his middle school teachers. The lawsuit alleges the teacher and the school are party to blame for the teen’s death following allegations of inappropriate contact between the teacher and the 8th-grader. Continue reading →

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When personal injury or wrongful death is caused by the reckless or careless actions of another, a negligence action may allow those affected to recover damages. However, plaintiffs (those who were wronged) need to pay careful attention to the statute of limitations in their case. That means knowing exactly what kind of case they have, who the defendant is and when the cause of action occurred. wrongful death lawyer

A good wrongful death attorney can help you navigate this complex field of law to ascertain what your rights are and when you must act. Failure to take action within the allotted time will result in total forfeiture of the claim. A plaintiff might have the strongest case ever, but if it isn’t timely filed, it will be forever barred.

A recent case out of Alaska had this unfortunate outcome, illustrating why it’s so important to seek prompt legal assistance with your case. Alaska, like Florida has strict limitations when it comes to when a personal injury or wrongful death claim can be filed. In Florida, F.S. 95.11 prohibits any personal injury lawsuit from being filed after four years of the cause of action (time of injury) or two years for any wrongful death action. Alaska also has a two-year statute of limitations on wrongful death cases. The time limit varies from state-to-state.  Continue reading →

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A defendant amusement park missed the deadline to seek compensation from the school of an 11-year-old girl killed in accident at the park, but it can still try to prove the school was partially negligent in a pending trial brought by the girl’s parents. wrongful death lawyer

That’s according to a recent ruling by the New Jersey Supreme Court. The decision was notable for the fact that it holds third-party claims against the government to the same standards for tort claim notice as first-party claims. In New Jersey, there is a 90-day deadline to file a notice – starting at the time of a victim’s death – to the defendant government agency and its subdivisions. Still, it’s a disappointing outcome for the plaintiff parents because the ruling will allow defendant amusement park to present evidence of the school’s potential liability, which could reduce its own liability and ultimately reduce damages awarded to plaintiffs.

The tragic events that spurred this case began in 2011, when the girl was on a school field trip hosted for honor roll students. The trip was organized by the school. She died after falling approximately 150 feet from a large Ferris wheel. Two years after the fifth-grader’s death, within the statute of limitations for wrongful death cases, her parents filed their wrongful death lawsuit.  Continue reading →

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Negligent security lawsuits are increasingly being filed as their is a growing recognition of the responsibility property owners have to tenants and patrons.

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Most of these lawsuits involve some type of assault and battery crime, though roughly a quarter stem from sexual assaults and about 15 percent from wrongful death claims. Robberies, home invasions and false imprisonment cases, too, could be the basis of a negligent security claim. The majority of plaintiffs are usually customers or guests of businesses, though some are also employees. A slim percentage are trespassers. Research has shown plaintiffs are more often prevailing in these cases.

One case in Florida that has gained some attention involve the 2014 murder-suicide in which a mother and son were shot and killed in an apparent robbery by a man who soon after turned the gun on himself. Continue reading →

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Little more than a year ago, the driver of a van full of churchgoers ran a stop sign and crashed in a shallow body of water off a Florida highway in Glades County, killing eight of the 18 passengers inside.van5

Now, authorities say the driver may have been impaired by over-the-counter antihistamines. Investigators with the National Transportation Safety Board (NTSB) weren’t able to uncover much information about the amount of sleep the driver had prior to the van crash in March 2015, so determining whether that was a factor was difficult. However, drug and alcohol testing on the driver did not reveal the presence of any other potentially impairing substances.

We do know that the passenger van lacked seat belts (only the driver and front seat passenger were belted in), the vehicle was overloaded and it was late at night. The passengers were members of the Fort Pierce Independent Haitian Assembly of God and were on their back from a Palm Sunday celebration at a sister church in Lee County, the Eglise de Dieu La Jerusalem Celeste.  Continue reading →

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Concerns about bus and motor coach safety have increased in recent years with a number of high-profile accidents, many resulting in multiple fatalities. busdriver1

Motor coaches are widely used for a variety of trips, including school sporting events, family vacations and outings for seniors. But a number of serious crashes have prompted the National Transportation Safety Board (NTSB) to recommend the Federal Motor Carrier Administration (FMCSA) work with bus operators and the trucking industry to implement improved commercial vehicle safety measures that would include:

  • Flame-resistant interiors;
  • Data recorders;
  • A second door for emergency evacuations;
  • Pre-trip safety briefings for passengers;
  • Windows that can stay open during evacuation.

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They are supposed to ease the pain and suffering of those recovering from an on-the-job injury. Increasingly, doctors are turning to opiod pain medications to help treat those who are hurt at work. pillswhite

But even though a new National Safety Council report shows a quarter of all workers’ compensation prescription drug claim costs were for opiod pain medications, that same research reveals those who take these powerful medications don’t have better treatment outcomes. In fact, they are more susceptible to addiction, overdose and even death.

So where can workers and/or their families turn when these medications lead to serious adverse affects? The answer can be legally complex, depending on who prescribed the drugs and why. A number of recent court decisions have held that under some situations where injured workers have suffered overdoses as a result of pain medications they were receiving for work injuries, the workers’ compensation insurer may be liable to cover medical expenses. lost wages and if applicable, death benefits. Continue reading →